Bid Protest |Government Contract Bid Protest

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1. Coley & Associates, Inc., B-404034; B-404034.2; B-404034.3, December 7, 2010

Agency: Department of Health and Human Services

Disposition: Protest denied.

Keywords: Technical Evaluation

General Counsel P.C. Highlight: In reviewing a protest against an agency's evaluation, GAO will not reevaluate quotations but instead will examine the record to determine whether the agency's judgment was reasonable and consistent with the stated criteria and applicable procurement statutes and regulations.

Coley & Associates, Inc. (Coley) protests the award of a contract under a request for quotations (RFQ under GSA FSS Schedule 70), issued by the Department of Health and Human Services, Centers for Medicare and Medicaid Services (CMS), for the development and operation of a multi-payer claims research database.

The RFQ anticipated award of a fixed-price task order with a three-year period of performance. Quotations were to be evaluated based on price, and the following non-price factors: discussion and understanding of the scope of work; technical approach; qualifications of proposed personnel; management plan; and past performance. CMS concluded that the evaluated deficiencies in Coley's quotation rendered it technically unacceptable.

Coley argues that the agency's evaluation of its technical quotation was flawed. GAO states that the evaluation of a proposal or quotation is a matter within the agency's discretion. In reviewing a protest against an agency's evaluation, GAO will not reevaluate quotations but instead will examine the record to determine whether the agency's judgment was reasonable and consistent with the stated criteria and applicable procurement statutes and regulations. A protester's mere disagreement with the agency's judgment in its determination of the relative merit of competing quotations does not establish that the evaluation was unreasonable.

GAO reviews each of Coley's claims that it should have received additional strengths under the technical evaluation. After a thorough review, the GAO concludes that Coley's disagreement on each such point does not provide a basis to sustain the protest.

Coley challenges CMS's assessment of five deficiencies in its quotation. Again, the GAO reviewed each deficiency protested and determined that the Agency assessment of a deficiency was reasonable.

. Protest denied.

2. 1-A Construction & Fire, LLP, B-404128, January 7, 2011

Link: GAO Opinion

Agency: Department of Agriculture

Disposition: Protest denied.

Keywords: Technical Evaluation

1-A Construction & Fire, LLP protests the issuance of a task order under a request for quotations (RFQ), issued by the Department of Agriculture, for the construction of reservoirs in a national forest.

The RFQ contemplated the issuance of a fixed-price task order for the construction of six ponds/reservoirs and was to be issued to the vendor whose quotation conforming to the solicitation was determined to the most advantageous to the Government considering relevant past performance, benefit to the local community, and price. The RFQ instructed vendors to list their relevant projects, "similar in nature and complexity to that required," that were completed during the past two years or that are currently in progress. Under the benefit to community factor, vendors were to provide a summary of how they planned to benefit the local area, "with respect to people working on the project, any rental equipment that will be provided from businesses, housing and meal facilities used, etc."

Although 1-A submitted the lowest-priced proposal, it identified limited reservoir experience and provided limited information about that experience. 1-A also provided a limited response for the benefit to the local community factor, which stated only that the reservoir project would provide water sources for cows and wildlife, and was insufficient to explain how the firm planned to benefit the local area.

1-A contends that the agency unreasonably concluded that its quotation was unacceptable under the benefit to local community factor and contends it was sufficient for the firm to have noted in its quotation that the pond project will provide water for cows and wildlife.

GAO states that in reviewing a protest against the propriety of an evaluation, it is not GAO's function to independently evaluate proposals and substitute its judgment for that of the contracting activity. Rather, GAO will review an evaluation to ensure that it was reasonable and consistent with the evaluation criteria in the solicitation and applicable procurement statues and regulations.

Here, the RFQ specifically instructed vendors to address how they planned to benefit the local community in carrying out the project through local hiring, local equipment rentals, and the use of housing and meal facilities. 1-A's response was general and not meaningful, since the RFQ clearly required establishment of how the vendor's own planned activities in performance of the project would provide a direct economic benefit to the local community. Given 1-A's failure to adequately address this requirement, the agency acted reasonably in finding 1-A's quotation unacceptable. Protest denied.

3. Bering Straits Logistics Services, LLC, B-403799; B-403799.3, December 15, 2010

Link: GAO Opinion

Agency: Defense Logistics Agency

Disposition: Protest denied.

Keywords: Price Evaluation; Wage Determination; Below-cost offer

General Counsel P.C. Highlight: Where the RFP provides for the award of a fixed-price contract, the contracting agency many not adjust offerors' prices for purposes of evaluation. Below-cost offers on a firm fixed priced contract are not prohibited, and even where an offeror bases its prices on labor rates lower than those specified in accordance with the SCA, the firm is eligible for award if it does not take exception to the SCA requirements.

Bering Straits Logistics Services, LLC (BSLS) protests the award of a contract under a request for proposals (RFP), by the Defense Logistics Agency (DLA), for fuels management services at Tyndall Air Force Base, Florida.

The RFP provided that proposals would be evaluated on the basis of technical capability, past performance, and price. The technical capability factor was further divided into five subfactors: fuels operation management and support; safety; operation of the Fuels Information Service Center; maintenance of equipment and facilities; and compliance and environmental. Additionally, the RFP included Defense Energy Support Center clause 52.222-9F05, "Wage Determination," advising offerors that the procurement was subject to a wage determination under the Service Contract Act (SCA), as well as a collective bargaining agreement (CBA).

BSLS's final revised proposal was rated marginal under the technical capability factor and very good under the past performance factor and it was not lowest in price. BSLS alleges that the eventual awardee's proposal ignored job classification requirements mandated by the CBA applicable to the contract, and that the job classifications actually set forth in the awardee's proposal demonstrate that it failed to comply with personnel qualifications and experience requirements set forth in the RFP. DLA argued that the awardee's offer on a firm fixed priced contract cannot be revised for evaluation purposes.

GAO agrees with the agency with DLA's argument that it could not adjust the awardee's price, where, as here, the RFP provides for the award of a fixed-price contract. The contracting agency many not adjust offerors' prices for purposes of evaluation on a fixed priced contract. Given that the RFP here does not specifically call for a price realism analysis, the agency was not required to perform a detailed price analysis. In any event, below-cost offers are not prohibited, and even where an offeror bases its prices on labor rates lower than those specified in accordance with the SCA, the firm is eligible for award if it does not take exception to the SCA requirements. The record shows that the awardee took no exception to the SCA and CBA requirements. Accordingly, the awardee will be required to perform the specified fuels services in compliance with the terms of the RFP, including compensation of its employees at the required rates, at the prices proposed.

Second, BSLS's argument that the awardee's proposal should have received a lower technical rating or been found technically unacceptable for its alleged failure to comply with the job classification terms of the CBA is without merit. The RFP did not call for the agency to review proposals for compliance with the job classification or wage rate terms of the SCA or CBA. In this regard, the determination of prevailing wages and fringe benefits, and the issuance of appropriate wage determinations under the SCA, are matters for the Department of Labor (DOL). GAO states that concerns with regard to establishing proper wage rate determinations or the application of the statutory requirements should be raised with the Wage and Hour Division in DOL, the agency that is statutorily charged with the implementation of the Act. Protest denied.

4. Ideal Fastener Corporation, B-404206, January 11, 2011

Link: GAO Opinion

Agency: Department of Justice

Disposition: Protest denied.

Keywords: Protesting the terms of the solicitation; Procurement Announcement

General Counsel P.C. Highlight: In its procurement announcement, an agency must include an "accurate description" of the property or services to be purchased, sufficient to provide prospective offerors with the ability to make an informed business judgment as to whether to request a copy of the solicitation.

Ideal Fastener Corporation (IFC) protests a request for proposals (RFP), issued by Federal Prison Industries (UNICOR), for 22 commercial products to be used in the manufacture of military uniforms.

UNICOR posted the RFP as a combined synopsis/solicitation on FedBizOpps.gov. UNICOR titled the combined synopsis/solicitation "Commercial Items, Hook & Loop, Fasteners, Barrell Locks for ACU & BDU's." The combined synopsis/solicitation also included a link to a document title, "Item Specification Text," which together with the RFP identified, and described in detail, the 22 individual items UNICOR sought to procure. These items were six types of hooks, eight types of loops, seven types of slide fasteners, and one type of barrel lock.

IFC explains that it is a long-time supplier of slide fasteners to the federal government but that it does not produce hook and loop fasteners. While conducting a search of FedBizOpps for potential contracting opportunities, one of IFC's employees viewed the title of the notice for the combined synopsis/solicitation; however, because the title did not use the term "slide fasteners" or "zippers," the employee did not open the link to the actual synopsis, which would have led IFC to the RFP and item specifications. IFC did not submit a proposal.

IFC argues that by using the term "fasteners" instead of the more specific terms "slide fasteners" or "zippers" in the title, UNICOR failed to properly identify the procurement and thereby frustrated IFC's ability to compete for that portion of the procurement.

GAO states that the Competition in Contracting Act of 1984 generally requires that contracting agencies obtain full and open competition through the use of competitive procedures. In furtherance of this goal, agencies are required to use reasonable methods to publicize their procurement needs. The official public medium for providing notice of contracting actions by federal agencies is the FedBizOpps website, which has been designated by statute and regulation as the government-wide point of entry. The notice provided by an agency must include an "accurate description" of the property or services to be purchased, sufficient to provide prospective offerors with the ability to make an informed business judgment as to whether to request a copy of the solicitation.

Here, the combined synopsis/solicitation posted by UNICOR on FedBizOpps was not misleading and provided potential offerors, such as IFC, with notice of the intended procurement, which included the acquisition of slide fasteners. Given that slide fasteners are a type of fastener, the title of the combined synopsis/solicitation accurately reflected the fact that the RFP may have potentially included a requirement for slide fasteners. It was therefore incumbent on IFC to review the actual synopsis, RFP, and item specifications, all of which were easily available to IFC, to determine whether the procurement in fact included a requirement slide fasteners. In this regard, we have held that potential offerors such as IFC have an affirmative duty to make every reasonable effort to obtain solicitation materials. The protest is denied.

5. Perini Management Services, Inc., B-404261; B-404261.2; B-404261.3; B-404261.4, December 17, 2010

Link: GAO Opinion

Agency: Department of State

Disposition: Protest denied.

Keywords:

General Counsel P.C. Highlight:

Perini Management Services, Inc. (Perini) protests the award of a contract under a request for proposals (RFP), issued by the Department of State (DOS), for the design and construction of a Type 3 Barrack and infrastructure improvements on the new embassy compound in Baghdad, Iraq.

The DOS issued the solicitation to nine firms that were identified as having the knowledge, experience, and ability to mobilize and meet an aggressive delivery schedule. The RFP stated that the procurement was subject to section11 of the Foreign Service Buildings Act of 1926, as amended, commonly referred to as the Percy Amendment. The Percy Amendment limits eligibility for award of certain overseas construction contracts to American-owned offerors and foreign offerors satisfying certain specified criteria. In addition, the Percy Amendment mandates that the prices proposed by American-owned offerors be reduced by 10% for evaluation purposes. The statute states, that qualification as an American-owned offeror requires, among other things, evidence of "performance of similar construction work in the United States or at a United States diplomatic or consular establishment abroad."

The RFP included DOS Acquisition Regulation (DOSAR) sec. 652.236-71, which implements the requirements of the Percy Amendment. However, the regulation has not been revised to reflect that, under the current version of the Percy Amendment, similar construction services may be either performed in the United States or at a diplomatic or consular establishment abroad. The regulation incorrectly states that similar construction services are to be performed only in the United States.

After award was made to the apparent low offeror, Perini filed a protest, arguing that the agency failed to follow DOSAR sec. 652.236-71 and the terms of the RFP when it concluded that the awardee was American-owned for purposes of applying the 10% price preference under the Percy Amendment.

GAO states that it is well-settled that when a statutory language provides an unambiguous expression of the intent of Congress, the unambiguous intent of Congress must be given effect. Further, a regulation must be interpreted so as to harmonize with and not further conflict with the objective of the statute it implements. The DOSAR regulation, recited in the RFP, makes clear that "[t]his solicitation is subject to [the Percy Amendment], as amended (22 U.S.C. 301)." The Percy Amendment unambiguously states that projects performed outside the United States may be considered for purposes of determining American-owned status under the statute. Although it is true that the DOSAR clause recited in the solicitation misstates the Percy Amendment as defining American-owned firms as those that perform work in the United States, the language in the clause does not provide a basis for the agency to ignore the clear intent of Congress as set forth in the statute itself. To the extent the regulation may be interpreted as conflicting with the statue, the statute must be given effect. Accordingly, GAO finds reasonable the agency's consideration of the awardee's construction projects performed outside the United States at diplomatic or consular establishments. Protest denied.